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Litigation Section Website › Newsletters › The Litigator, July 2010 › N.C. Supreme Court Adopts Changes in Mediation Rules

N.C. Supreme Court Adopts Changes in Mediation Rules

Article Date: Monday, July 19, 2010

On Feb. 17, 2010, the N.C. Supreme Court adopted revisions to the Mediated Settlement Conference (MSC), Family Financial Settlement (FFS), and Clerk Mediation (Clerk) Program Rules. The effective date for the revisions was March 1, 2010. The changes to the Rules were recommended by the N.C. Dispute Resolution Commission (the “Commission”).

MSC, FFS and Clerk Rule 2, which set forth the process by which parties may select a mediator, were revised to now require parties to serve a copy of the Designation of Mediator form on their party-selected mediator. Program forms have now been updated to reflect the new requirement (see AOC-CV-812 (MSC), AOC-CV-825 (FFS) and AOC-G-302 (Clerk)) and are posted on the court’s (www.nccourts.org) and Commission’s (www.ncdrc.org) websites. Rule 2 has long required parties to verify a mediator’s willingness to serve and compensation prior to advising the court of his or her selection. However, court staff and the Commission have continued to hear from mediators about instances where they were selected by the party, but were never informed of their selection until after the deadline for mediation completion had passed and they were contacted by court staff. The Commission hopes that requiring service of a copy of the Designation form on party-selected mediators will help to reduce or eliminate this problem.

Enabling legislation for the programs and MSC, FFS and Clerk Rule 5 were revised to clarify that judges not only have authority to hold parties in contempt for their failure to appear for mediation, but also for their failure, without good cause, to pay mediator fees, whether the mediator was party-selected or court-appointed. Calls to the Commission’s office from mediators who have not received payment for their services have increased substantially during the economic downturn. The Commission encourages attorneys to remind their clients to bring their checks to mediation so that the mediator may be paid at the conclusion of the conference. In situations where clients do not come prepared to pay, the Commission asks attorneys to actively follow up to insure that mediators are eventually compensated for their services. The Commission also asks that attorneys be mindful that this program is intended to expedite litigation and to help make the courts more efficient. If a mediator must file a Motion for Show Cause Hearing (AOC-CV- 815) in order to collect his/her fee, the program is, contrary to its mission, spawning litigation. If an attorney is representing a client who is indigent, the client should bring a copy of his or her Petition And Order For Relief From Obligation To Pay Mediator’s Fee (AOC-CV-814 (MSC), AOC-CV-828 (FFS), or AOC-CV-306T (Clerk)) to the mediation and give it to the mediator at the conclusion of mediation. The mediator, should, in turn, attach the copy to his or her Report of Mediator and forward it to the court. If the court determines that the client is, in fact, indigent and cannot pay any or all of the fee, the mediator must, in accordance with program rules, waive his or her fees or accept a partial payment as approved by the court. 

Lastly, MSC, FFS and Clerk Rule 7 were revised to increase the fees due court-appointed mediators. The one time, per case administrative fee (case scheduling fee) was increased from $125 to $150. The fee for hourly services was increased from $125 to $150. Given the current economic situation in North Carolina, the Commission appreciates that this is a difficult time to raise fees on parties participating in court-ordered mediated settlement conferences. However, the Commission also recognizes that this is only the second increase in mediator fees to occur since the inception of the superior court’s Mediated Settlement Conference Program in October of 1991, nearly twenty years ago. As the Commission’s Chair, Senior Resident Superior Court Judge W. David Lee, observed, “Our court-appointed mediators work hard. Very often the cases they mediate involve pro se parties or attorneys who are not communicating or who are, at best, disinterested in mediating the matter. Scheduling often poses a challenge and parties are more likely to fail to appear. Often fee collection becomes an issue. These mediators have been patient and are long over due for an increase.” Judge Lee also noted that over the past few years, court staff have expressed concern to the Commission that some of our State’s more talented and respected mediators have been leaving court-appointed mediator lists because they could no longer afford to serve. It is imperative, he believes, that experienced and successful mediators be available for court appointment in all judicial districts.

In addition to the above fee increases, the cost to substitute a mediator was increased from $125 to $150 in instances where the parties fail to designate a mediator timely, the court appoints one and now the parties are seeking to substitute another of their own choosing. MSC, FFS and Clerk Rule 7 all require parties to provide proof to the court that they have paid the court-appointed mediator before the substitution is approved. A copy of a check can serve as proof. In addition to revising this rule, the old Substitution of Mediator form has been replaced with a new Consent Order for Substitution of Mediator (AOC-CV-836). The new form allows not only for the substitution of an MSC or FFS party-selected mediator for a court-appointed one, but also for the substitution of a party-selected mediator for another party-selected mediator in instances where the mediator who was originally selected can no longer serve.  

The Commission has advised certified mediators that the fee increases noted above are applicable only in cases referred to mediation after March 1, 2010. The old rates are to be charged in cases referred prior to March 1, 2010. 

Copies of the new rules are posted on the Commission’s website at www.ncdrc.org . Any questions about the rule revisions or form changes may be addressed to Commission staff at (919) 890-1415. 
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.